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Reforms urged to prevent mistakes

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Justice in Question

When innocent people go to prison, the entire criminal justice system can be thrown under a microscope as advocates, attorneys, judges, and legislators attempt to figure out what went wrong.

Reactions are mixed about how Indiana rates overall in preventing and analyzing those wrongful convictions, and national advocates for wrongful-conviction reforms say Indiana is slightly behind when compared to other states that have implemented reforms in the past decade. But hope can be found as they examine the state’s efforts to strengthen the system and try to prevent these criminal justice mistakes from happening in the first place.

systematic changes

“Indiana appears to be interested in ways to enhance the accuracy of criminal investigations, strengthen prosecutions, and better ensure both justice and public safety,” said Stephen Saloom, an attor ney and policy director for the New York-based non-profit Innocence Project, which studies these issues and advocates for reform nationally. “That’s the positive that we need to look at.”

Of the causes that most often contribute to wrongful convictions eyewitness misidentifications, invalidated or improper forensic science, false confessions or admissions, and bad information from informants or snitches. Indiana has implemented only one of the five key reforms believed to help address those issues.

Nationally, 31 states have enacted DNA preservation statutes while all but Alaska and Oklahoma have adopted automatic DNA testing laws, according to the Innocence Project. Sixteen states have implemented a policy about recording police interrogations, seven states have put eyewitness identification reform policies in place, and eight have established “innocence” commissions to study broad-based criminal justice reforms in these areas.

While Indiana has established a statewide public defender agency to help on cases, and defendants are able to obtain post-conviction hearings that other states sometimes don’t offer, Indiana has adopted only one of those national reforms: an automatic DNA-testing statute, Indiana Code 35-38-7, has been in effect since July 2001.

Discussion has been ongoing about whether Indiana should have a DNA preservation statute, but the Indiana Supreme Court says nothing official is currently being considered on that topic. The court is, however, exploring whether custodial police interrogations should be recorded. 

UPDATE: The Indiana Supreme Court issued an order Sept. 15, 2009, adding a new Rule of Evidence requiring that statements obtained during police interrogations must be recorded before they can be entered into evidence in felony cases. Click here to read more.


More than 300 public comments were submitted to the state court’s Committee on Rules of Practice and Procedure during a public comment period that ended

April 30. The court is deciding whether it should adopt a rule requiring that police custodial interrogations in criminal investigations should be recorded and what form that might take. Two prototypes outline possibilities for Indiana Rule 26 of Criminal Procedure on Electronic Recordation, or Indiana Rule of Evidence 1009.

During the last legislative session, Rep. Linda Lawson, D-Hammond, and Sen. Karen Tallian, D-Portage, both pitched the idea, but their bills didn’t make it out of committee. Fiscal impact statements said the Indiana State Police record about half of them already; a law could mean spending to start the process if it’s not already done, but savings could be found in time and costs of pretrial or trial hearings about what happened during a custodial interrogation.

Floyd County Prosecutor Keith Henderson, who is chairman of the ethics committee of the Indiana Prosecuting Attorneys Council, said the requirement would undermine police officers’ work and also jurors’ ability to determine the truth. His comments echo several others submitted by prosecuting attorneys throughout the state.

SaloomOn the other hand, Terre Haute defense attorney Jessie Cook argues that the recording should be required because it’s consistent with what other states are doing and it can directly impact a potential wrongful conviction.

“Electronic recording of custodial interrogations minimizes the risk of false confessions and convictions of the innocent, while providing powerful evidence to help convict the guilty,” she commented to the court.

The rules committee is currently considering the issue, and there isn’t a timeline as to when any action must occur. Whatever happens on that reform, though, advocates say they are encouraged the state’s criminal justice system officials are talking about the issues that often result in wrongful convictions.

“We all have to start somewhere, and it’s good that Indiana is having those discussions,” said Marla Sandys, an associate criminal justice professor at I.U. Maurer School of Law - Bloomington, who also sits on a wrongful conviction advisory board in Indianapolis. “Everyone is on the same side (because) no one wants to see innocent people convicted. The question becomes how do we make sure that best happens. That’s the struggle and obstacle, and there are no easy answers.”

Rep. Ralph Foley, R-Martinsville, who sits on the House Judiciary and Courts and Criminal Code committees, said he is also concerned about these issues and doesn’t have a problem with recording police interrogations or other issues that could better help prevent wrongful convictions.

“Wrongful convictions seem to be the unusual exception, and there’s probably more on the other side than those involving wrongful convictions,” he said. “But I came up on the law-and-order side of the system. So it bothers me that we review these in a courtroom laboratory when there may not have been proper training at the front end.”

When asked about the rate of wrongful convictions nationally and how the state focuses on that at the appellate level, Indiana Attorney General Greg Zoeller referred to the high rate of criminal convictions that are affirmed. Zoeller said his office closely follows any legislative or court efforts to more sharply hone the use of forensic evidence in criminal trials. He also works closely with county prosecutors to ensure the system’s fair to both the accused and victims.

“Maintaining public support for the criminal justice system is part of my role as attorney general,” he said. “Our office’s duty is to defend the legal process on appeal, and our success rate in having criminal convictions affirmed is greater than 90 percent.”

HendersonEvidence nationally and statewide that wrongful convictions happen can cast doubt on the overall system, according to Fran Watson, attorney and law professor at Indiana University School of Law -- Indianapolis, and others watching these issues. At the Indianapolis law school, the now-freestanding wrongful conviction clinic helps keep an eye on those cases where justice has been wrongly adjudicated and also advocates for prevention. Earlier this year, a 12-person advisory board was also established to help the clinic educate, exonerate, advocate, and communicate about the related issues. The group’s mission is to “elevate practice expertise, knowledge and advocacy to exonerate those who have been wrongfully convicted, and identify the systematic failings that lead us to wrongful convictions.” State and local prosecutors, defense attorneys, private practice lawyers, and criminal justice and forensic science law professors comprise the committee.

“We like to think we have more of a presence and identity, and we can have an impact where it counts,” she said. “It’s just about the worst thing to believe someone in prison is innocent and shouldn’t be there to begin with. And while we can talk about reforms all day long, I couldn’t agree more (that) the lawyers have to get it right at the trial level to have the best chance of prevention.”

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  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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